Abstract

This contribution examines section 15 of the Matrimonial Property Act 88 of 1984 with reference to two recent cases: Visser v Hull 2010 1 SA 521 (WCC) and Bopape v Moloto 2000 1 SA 383 (T). Section 15 is designed to protect the patrimonial interests of spouses married in community of property by requiring the consent of both spouses for certain transactions involving joint property. The contribution analyses the effectiveness of section 15 as used by the courts, and argues that section 15 does offer useful protection in certain circumstances. In both of the cases under discussion, the plaintiffs succeeded in recovering assets that had been alienated from the joint estate without the required consent. However, the courts did not identify the precise legal mechanisms of recovery. The contribution considers several possible mechanisms for redress including the rei vindicatio and other vindicatory actions; undue enrichment remedies such as the condictio sine causa specialis and the condictio ob turpem vel iniustam causam; delictual remedies based on fraud or theft (the condictio ex causa furtiva); and the actio Pauliana utilis.